Waterkampioen watersport magazine

Damage caused by someone else’s boat breaking loose

During the storm of 3 January, quite a few yachts were damaged in Urk. That was because the ‘Noah’s Ark’ moored there became adrift and landed against those boats. And that, I read, had something to do with bollards that had broken out of the quay. Fortunately there was only material damage. But how and to whom do you recover in such a case if it concerns your boat?

It is a horror scenario for many water sports enthusiasts: you have done everything to moor your boat safely and you suffer damage because someone else’s boat has broken loose. But for those who are well insured, and that is most yacht owners, this does not have to turn into a financial drama.

There are two processes in the settlement of the claim by your insurance company. Firstly, the assessment and payment of the damage and secondly, the possible recovery of the damage from the liable party. After you have reported the damage to your insurer, they usually send an expert to assess the damage and the cost of repairs. In this estimate of the damage, the so-called ‘new for old’ deduction may be applicable. For example, if your mast broke, but it was already fifteen years old, you would be ‘better off’ if you received money for a completely new one. So that age is taken into account, unless you have an insurance that pays out on the basis of new/purchased value. You have to check the policy conditions.

The expert usually also investigates the cause of the damage immediately. In the case mentioned by Mrs van der Zee, it is a matter of an ‘external calamity’ and a collision caused by this is covered by the insurance. For the person affected the matter is thus settled.

After the insurer has paid out, in this type of ‘loss of profits’ it wants to know whether it can recover the damage it has paid out from the party that caused it. Collision law provides that for liability to exist, there must be fault. By accident or force majeure, there is no liability. In case law, ‘fault of the ship’ applies if a fault has been made by a person for which the owner of the ship is liable, or because the ship in the given circumstances did not meet the requirements that one could expect of it (a defect). We do not know strict liability for loss or damage. Someone is not liable because he happens to be the owner of the ship that causes damage. A fault or defect really has to be demonstrated.

An appeal to force majeure because of the storm will not easily succeed, because there really must have been wind force 12 or more. It must therefore be examined how the ship could have broken loose. If, for example, it appears that insufficient precautions were taken when securing the ship, then the ship can be blamed and the liability lies with the owner. He should have double secured or not moored crosswind! If the ship was properly moored, but the bollards on the jetty or the shore were not anchored well enough to hold the ship in place and broke loose as a result, then those bollards have not met the reasonable requirements. In that situation there may be an error on the part of the port authority responsible for the quay, jetty or harbor. They should have inspected or maintained those bollards better. That port authority, in turn, is usually the responsibility of a municipality.

The damage investigation will show what the so-called ‘furthest removed cause’ was of the ship’s release. Based on this information, an insurer will hold the owner and/or municipality liable. If no amicable solution can be found, that party will be sued for compensation of the damage. Fortunately, however, this is not something you need to worry about as an insured party. Your damage will be compensated anyway, so you can enjoy sailing again next season.

More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief

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